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3d 127
Carlos Garcia appeals from the February 9, 2001, judgment of the United
States District Court for the Eastern District of New York (Carol B. Amon,
Judge) after a trial jury convicted him of one count of conspiracy to distribute
and possess with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)
(1), 841(b)(1)(B)(ii)(II), and 846, and one count of possession with intent to
distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(ii)
(II). The district court sentenced Garcia principally to two concurrent terms of
120 months imprisonment. On appeal, Garcia challenges two of the court's
evidentiary rulings. First, Garcia argues that the court erred in admitting
evidence of Garcia's prior conviction for the sale of cocaine to show his
knowledge or intent regarding the instant drug deal. Second, Garcia argues that
the court erred in allowing the government informant to interpret a code in
which he and Garcia allegedly spoke during a recorded phone conversation. We
find that the district court abused its discretion in both admitting the prior
conviction and allowing the testimony. Furthermore, we find that these errors
were not harmless, and we vacate both of Garcia's convictions and remand for a
new trial.
BACKGROUND
2
We take the following facts from the testimony at trial. The police arrested
Carlos Garcia and Diego Ceron in July 2000 after Ariel Toro Balcarcel1 , a drug
dealer turned government informant and cooperating witness, allegedly
purchased three kilograms of cocaine from Garcia. Because Toro Balcarcel's
testimony formed the crux of the government's case against Garcia and Ceron,
we discuss his background here in some detail. Toro Balcarcel has an extensive
criminal history. Born in Argentina, Toro Balcarcel first entered the United
States in July 1995 with the intent to work on his music career. He stayed only
one month, finding no success, and returned to Argentina. In Argentina, Toro
Balcarcel began working for Arturo Bueno, a known drug dealer and the head
of a criminal organization. Toro Balcarcel returned to the United States in
August of 1995, this time with the express purpose of distributing heroin.
Shortly after his arrival, police arrested Toro Balcarcel in New York when they
discovered him in an apartment containing approximately two kilograms of
heroin. In addition, Toro Balcarcel possessed seven grams of heroin on his
person. Toro Balcarcel pleaded guilty to one count of simple possession of
heroin, and the court sentenced him to five months imprisonment, three years
probation, and a $1,000 fine. Although Toro Balcarcel testified that he was not
responsible for the two kilograms of heroin, he admitted that he was in the
apartment because he was supposed to distribute a different shipment of heroin.
Authorities released Toro Balcarcel from prison in January 1996. He did not
want to pay the outstanding fine, and he wanted to see his family, so he
returned to Argentina. Toro Balcarcel did not seek the permission of his
probation officer before leaving the United States, and a warrant issued for his
arrest. Beginning in late 1996, Toro Balcarcel worked in Argentina and
Colombia in the trafficking end of the drug business. Specifically, Toro
Balcarcel recruited and supervised the individuals who worked as couriers to
smuggle cocaine and heroin out of South America and into various countries,
including the United States. Toro Balcarcel testified that part of his
responsibility was to ensure that the couriers swallowed all the balloons
containing heroin that they could. Toro Balcarcel also testified that one of the
couriers he supervised died when some of the balloons broke, but he denied any
responsibility for this.
In November 1997, Toro Balcarcel used a false name and false passport to
return to the United States to supervise the arriving couriers and to distribute
heroin. In September 1998, police arrested Toro Balcarcel for possessing forged
passports. Authorities detained him for two months and then deported him to
Colombia. In December 1998, Toro Balcarcel again used a forged passport to
illegally enter the United States for the purpose of distributing drugs.
5
On March 31, 1999, police arrested Toro Balcarcel for possession with intent to
distribute heroin and conspiracy to distribute heroin after they found Toro
Balcarcel with three kilograms of heroin. Toro Balcarcel admitted that when the
police arrested him, he lied about his identity, knowledge, and involvement to
the police, his lawyer, and the court. In fact, it was not until August or October
1999 that Toro Balcarcel's lawyer informed the court of Toro Balcarcel's true
identity. Shortly after his arrest, Toro Balcarcel entered into a cooperation
agreement with the federal government in which he agreed to plead guilty to the
charge of conspiracy to distribute heroin and to cooperate in police
investigations in exchange for a U.S.S.G. 5K1.1 letter. In August 1999, the
government released Toro Balcarcel on bail in order for him to cooperate, and
they gave him money and a phone card.
At the time of Garcia's trial, Toro Balcarcel had pleaded guilty and was
awaiting sentencing. He testified that he understood he faced a statutory
minimum of ten years imprisonment and a maximum of life in prison. He also
knew the 5K1.1 letter would allow the court to sentence him to less than ten
years. Finally, Toro Balcarcel testified that his cooperation agreement covered
every criminal act he committed between 1995 and 1999 and that he cooperated
because he did not want to go to jail and did not want to be deported.
On July 12, 2000, under police monitoring, Toro Balcarcel met Garcia and
Ceron at Garcia's house. According to Toro Balcarcel, Garcia had only three of
the ten kilograms of cocaine that he had requested, so they agreed that Garcia
would provide the drugs in separate deliveries and that Toro Balcarcel would
pay Garcia at the end. Toro Balcarcel did not explain why Garcia agreed to
front drugs on a first time deal to someone with whom he had no history of
dealing. The detectives monitoring Garcia's house did not observe a transfer,
but when Toro Balcarcel met the police after he left Garcia's house, Toro
Balcarcel produced from the trunk of his van a bag containing three kilograms
of cocaine. After Toro Balcarcel left Garcia's house, the police arrested Garcia
and Ceron on drug charges and searched the house pursuant to a warrant. The
police did not find any cocaine, drug paraphernalia, or a substantial sum of
money in the house or on either Garcia or Ceron.
10
As one of the main pieces of evidence at trial, the government offered the tape
and transcript of a July 10, 2000, recorded phone conversation between Toro
Balcarcel and Garcia. The evidence showed that on July 10, 2000, Toro
Balcarcel telephoned Ceron, who handed the phone to Garcia, and Toro
Balcarcel and Garcia had a short conversation. A plain reading of the transcript
reflects a conversation between Toro Balcarcel and Garcia in which they
discuss a potential asbestos project, including details such as the number and
positions of the necessary employees, the required licenses and paperwork, and
the expected payment. They also agreed to meet to discuss the project further.
The substantive portion of the conversation follows:2
11
Ceron: Hello.
12
13
14
15
16
Toro Balcarcel: No, dude, I can't ... I can't get there on time, man.
17
Ceron: [unintelligible]
18
Toro Balcarcel: No, man, this is why I called him early to have a talk with him.
Isn't he [] there?
19
Ceron: Yes.
Toro Balcarcel: Put Caliche on.3
20
Garcia: Aloha.
21
22
23
Toro Balcarcel: Listen, man, I can't there on time because it's that I'm over on
Roosevelt with my family and I haven't been able to [sic] because my insurance
just expired and ... this is why I called you early, so we could meet. But listen, I
just spoke to my friend and it's all right; he'll be here early on Wednesday. Ten
(10:00) o'clock on the dot. You know?
24
Garcia: Yes.
25
26
Toro Balcarcel: So I told this to the man, that I had to have the ... the three (3)
licences. You heard? The lead one, the state and the city. He asked me is [sic]
the other guys also had the licenses and I told him yes, they had them, the
group, the supervisor, the foreman and eight (8) people.
27
Garcia: Yes.
28
Toro Balcarcel: I thought that in general there would be no problem, but always
28
Toro Balcarcel: I thought that in general there would be no problem, but always
having the three (3) licenses, obviously. With the corresponding dates. So all I
need is for you to give me ...
29
30
31
Garcia: I'm going to speak later on with Javier; everyone is okay with it and the
paperwork is complete. Perfect.
32
33
Garcia: No, no, because ... this is why I wanted to talk about this over there
because ... you know that when you get in touch with these people then they
[unintelligible] working with our stuff.
34
35
36
37
Garcia: [unintelligible]
38
39
Toro Balcarcel: So this is for you to know and we'd get together on Wednesday
and have a personal talk ...
40
Garcia: Anyhow, if you want, later, meet up with Diego and all that ...
Toro Balcarcel: Yes
41
Garcia: ... and you discuss these things with a little more time and then we're all
set, you know?
42
Toro Balcarcel: But anyway, I wanted to tell you that it's for sure, one hundred
(100) percent.
43
Garcia: Because you know, I didn't do another errand because I was waiting for
... to see if we could talk a bit more.
44
45
46
47
Garcia: reason I ... I ... didn't want to go calling people, get everything set into
place ... and then get told that you're not going to ...
48
49
50
Toro Balcarcel: You can relax because it's for sure, one hundred (100) percent.
I called you early so we could personally meet. And I called you to your
cellular several times.
51
Garcia: Well, man, if you knew ... I've been here in Queens and I was then in
[unintelligible] ... doing several errands. But all right, you also know I have the
entire day ahead.
52
Toro Balcarcel: But the important thing is that everything comes out okay.
53
54
55
56
57
58
Toro Balcarcel: Later ... I'll be over at Diego's as soon as I finish these errands
I'm making.
59
60
Toro Balcarcel: Oh, okay, so then I'll call you in a while and if you're there I'll
drop over and ... we'll talk a bit.
61
62
63
64
65
Garcia: ... try and come over because I'll be waiting for you.
66
67
Garcia: Okay.
68
69
Garcia: Okay.
70
71
According to the government, the real topic of this conversation was a drug
deal, and Garcia and Toro Balcarcel were speaking in a code using terms from
the asbestos industry to arrange the drug trade. At the trial and over both
defendants' objections, Toro Balcarcel testified to the "real" meaning of the
conversation and interpreted the "code." Toro Balcarcel testified that he and
Garcia spoke in code in order for Garcia to feel more at ease, and he deciphered
words and phrases of the conversation, explaining what he meant and what he
understood Garcia to mean.
72
maintained that the conversation was about the asbestos industry and a
potential asbestos job. He pointed to the plain meaning of the conversation, the
lack of evidence establishing a prior agreement between Toro Balcarcel and
Garcia to use code, and the lack of any evidence indicating how Garcia, an
actual asbestos supervisor, would have known that they were speaking in code
about drugs. The court overruled the defense objections and admitted Toro
Balcarcel's testimony, ruling that the witness was entitled to "some leeway to
interpret the conversation."
73
Toro Balcarcel deciphered the code as follows: "my friend" meant the
customer; "three licences" meant three kilograms of cocaine; "group" meant ten
kilograms of cocaine; "supervisor," "foreman," and "eight more people"
together meant ten kilograms of cocaine; "matching dates" meant good quality;
"high end" meant drug supplier; "the paperwork is complete" meant the ten
kilograms were ready and would be at the deal; reference to Garcia's activities
at the "DEP" meant Garcia had confirmed that the ten kilograms were ready;
references to being "on standby" and "contracts" meant they could conduct
another drug deal in the future; and "doctor" meant the drug deal was ready.
When the government inquired why Toro Balcarcel used a code in talking with
Garcia, Toro Balcarcel answered "so that [Garcia] could be at ease that the deal
was something sure and that there was nothing strange." On cross examination,
Toro Balcarcel rejected the defense's suggestion that the words concerned an
asbestos project and meant only what they appeared to mean. Toro Balcarcel
also testified about other conversations and meetings he had with the
defendants to set up the transaction and about several social meetings. None of
these other conversations involved drug code.
74
75
77
Fed.R.Evid. 404(b).
78
defendant's criminal propensity." United States v. Pitre, 960 F.2d 1112, 1118
(2d Cir.1992) (internal quotations omitted); United States v. Tubol, 191 F.3d
88, 95 (2d Cir.1999). Courts may admit evidence of prior bad acts if the
evidence "`is relevant to an issue at trial other than the defendant's character,
and if the probative value of the evidence is not substantially outweighed by
the risk of unfair prejudice.'" Tubol, 191 F.3d at 95 (quoting United States v.
Morrison, 153 F.3d 34, 57 (2d Cir.1998)). To determine if the court properly
admitted prior act evidence pursuant to Rule 404(b), we consider whether: (1)
the prior act evidence was offered for a proper purpose; (2) the evidence was
relevant to a disputed issue; (3) the probative value of the prior act evidence
substantially outweighed the danger of its unfair prejudice; and (4) the court
administered an appropriate limiting instruction. See Huddleston v. United
States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); Pitre,
960 F.2d at 1119. "We review a district court's admission of similar act
evidence for abuse of discretion." Tubol, 191 F.3d at 95. An abuse of discretion
requires that "the district court acted arbitrarily and irrationally." Pitre, 960
F.2d at 1119.
79
The government argued before the district court that evidence of Garcia's prior
conviction was admissible to establish that he knew the July 10 phone
conversation was about a drug deal in which he and Toro Balcarcel
intentionally spoke in code. The government argued that "[e]vidence of Garcia's
earlier involvement in narcotics transactions is admissible under Rule 404(b) to
rebut [Garcia's] assertion" that the July 10 telephone conversation was not
about a drug transaction, and to show that he was "a knowing and intentional
participant in the transaction that took place at his residence, rather than a mere
bystander."
80
Garcia opposed the government's application, arguing that the prior conviction
was so dissimilar to the instant offense that it offered no probative value in
establishing Garcia's knowledge that the conversation was about drugs. The
court overruled Garcia's objection. The court stated that it would admit the
prior conviction as relevant to the narrow purpose of showing Garcia's
knowledge of the code used in the July 10 phone conversation and the
conversation's true topic.6
81
Knowledge and intent are permissible purposes for which courts can admit
evidence of prior acts. See Fed.R.Evid. 404(b). Furthermore, Garcia "squarely
placed in issue" his knowledge and intent when he denied the existence of a
drug transaction, disputed the topic of the July 10 conversation, and argued that
he knew nothing about a code. United States v. Martino, 759 F.2d 998, 1004
(2d Cir.1985); Pitre, 960 F.2d at 1119-20. Therefore, the government offered
the prior act evidence for the proper purpose of showing Garcia's knowledge of
the drug transaction and its use of code.
82
Our inquiry does not end there, however, because the government still must
establish the relevance of the evidence to the issue in dispute. The government
may not invoke Rule 404(b) and proceed to offer, carte blanche, any prior act
of the defendant in the same category of crime. The government must identify a
similarity or connection between the two acts that makes the prior act relevant
to establishing knowledge of the current act. See, e.g., Pitre, 960 F.2d at 1118
(upholding admission of evidence of prior drug transactions involving the same
parties to show "a relationship of trust between the parties and that `they knew
about transactions of this type'"); United States v. Foster, 939 F.2d 445, 455
(7th Cir.1991) (admitting Rule 404(b) evidence of defendant's poems using
slang and code for drugs as relevant to defendant's knowledge of drugs in the
instant case because the poems "indicated, at a minimum, that [the defendant]
was familiar with drug code words and, to a certain extent, narcotics trafficking,
a familiarity that made it more probable that he knew that he was carrying
illegal drugs"); Martino, 759 F.2d at 1005 ("Thus, the government in an effort
to meet its burden of proof was certainly entitled to offer this prior similar act
evidence to aid the jury in assessing [the defendant's] intentions during his
presence on at least three separate occasions during ongoing drug
transactions."); cf. United States v. Louis, 814 F.2d 852, 856 (2d Cir.1987)
(upholding admission of similar act evidence of phone conversation using code
to show knowledge that defendant was discussing drugs in current offense).
83
84
In this case, the government did not establish that Garcia's prior drug conviction
was meaningfully probative of Garcia's knowledge that the July 10
conversation with Toro Balcarcel concerned a drug deal or that Toro Balcarcel
spoke in code. The only similarity between the two drug transactions, which
twelve years separated, is that both involved cocaine. However, the 1988
conviction involved two grams of cocaine, while the 2000 offense involved
between three and eleven kilograms of cocaine.7 The government did not offer
evidence of any other similarity or connection between the two transactions.
There was no proffer that the earlier transaction used a code or involved the
same people. Nothing in the certificate of disposition or the plea allocution
suggest any similarity between the events beyond the word "cocaine." Nothing
in the record explains how Garcia's participation in a minor drug sale twelve
years earlier is any more than marginally probative of the fact that Garcia must
have known that drug dealers speak in code and must have known that the July
10, 2000, conversation was a coded conversation about a drug deal.
85
The length of time between the events and the substantial difference in
quantities involved detract from any potential probative value of the prior
conviction. Cf. Fed.R.Evid. 609(b) advisory committee notes (explaining that
the rule governing the admission of prior convictions for impeachment
purposes "intend[s] that convictions over 10 years old will be admitted very
rarely and only in exceptional circumstances," because "after ten years
following a person's release from confinement (or from the date of his
conviction) the probative value of the conviction with respect to that person's
credibility [is] diminished to a point where it should no longer be admissible").
Moreover, the government offered and the court admitted the prior conviction
as relevant for a very specific purpose to show that Garcia knew that the
taped phone conversation was about a coded drug transaction but made no
attempt to link the transaction on that basis. In addition, the district court
acknowledged that evidence of Garcia's prior conviction carried "some danger
of prejudice," further underscoring the error before us. Given the lack of any
connection between the two offenses and the absence of any similarities
relating to knowledge of the code, we find that the court abused its discretion in
admitting Garcia's 1988 conviction as relevant to his knowledge and intent. In
addition, we note that the risk of prejudice arising from the admission of the
prior conviction clearly substantially outweighed any marginal probative value
of the evidence.
II. Testimony about the Alleged Code
86
We long have recognized that drug dealers seldom negotiate the terms of their
transactions with the same clarity as business persons engaged in legitimate
transactions. "[D]rug dealers rarely speak openly about their trade; instead, they
often engage in a so-called `narcotics code.'" United States v. Cancelmo, 64
F.3d 804, 808 (2d Cir.1995) (quoting United States v. Sisca, 503 F.2d 1337,
1343 (2d Cir.1974)); United States v. Velasquez, 271 F.3d 364, 372 (2d
Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1382, 152 L.Ed.2d 373 (2002).
Given the attempts of drug dealers to disguise the content of their discussions as
legitimate subject matters, courts may allow witnesses to "decipher" the codes
drug dealers use and testify to the true meaning of the conversations. Testimony
about the meaning of alleged code is admissible as lay opinion testimony under
Fed.R.Evid. 701, or as expert testimony under Fed.R.Evid. 702. Fed.R.Evid.
701 stated at the time of Garcia's trial:
87
If the witness is not testifying as an expert, the witness' testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness' testimony or the determination of a fact in issue.8
88
89
90
Rule 701(a) states that a lay witness only may offer opinions that are
In this case, Toro Balcarcel testified about what he meant when he said certain
things and what he understood Garcia to mean by certain words. Clearly, Toro
Balcarcel had personal knowledge of what he meant when he spoke to Garcia,
and his status as a participant in the conversation is sufficient to demonstrate
the basis of this opinion. See United States v. Urlacher, 979 F.2d 935, 939 (2d
Cir.1992) ("[The witness], as a participant in the conversations, had first hand
knowledge of the conversations."); see also United States v. Estrada, 39 F.3d
772, 773 (7th Cir.1994) (per curiam) (holding that a participant in the
conversation may testify as to his understanding of the conversation to satisfy
Rule 701(a)'s requirement that the testimony be rationally based on the
witness's perceptions). However, to the extent that Toro Balcarcel offered an
opinion about what he understood Garcia to mean, he was indirectly offering
his opinion about what Garcia knew. This evidence in itself is not
impermissible. "[T]here is no theoretical prohibition against allowing lay
witnesses to give their opinions as to the mental states of others," Rea, 958 F.2d
at 1215, provided that the proponent of the testimony first establishes a proper
foundation.
92
The government did not lay a proper foundation explaining the basis for Toro
Balcarcel's opinion of Garcia's knowledge. Toro Balcarcel explained his
participation in the conversation, why he spoke in code, and what he meant by
the code he used. However, Toro Balcarcel did not offer any explanation for
how Garcia could know that they were speaking in code. For example, he did
not testify that they had spoken in code before; he did not testify that the code
he used was a common one; and he did not testify that Garcia and he had a prior
agreement to speak in code or that they had discussed this possibility. This lack
of foundation is crucial, especially considering Toro Balcarcel's testimony that
he used terms from the asbestos industry as his code and that both Garcia and
he worked in the asbestos industry. There existed a real possibility that Garcia
believed they spoke about asbestos, not drugs.
93
The second prong of Rule 701 requires that the lay witness's opinion testimony
be "helpful" to the jury in understanding the witness's testimony or determining
a fact in issue. Fed.R.Evid. 701(b). In this case, the government did not
establish a foundation for Toro Balcarcel's opinion testimony. Therefore, we
need not decide whether the testimony met the helpfulness requirement of Rule
701. However, we offer a brief analysis of the conversation to provide guidance
to the district court in the event of a retrial.
95
The July 10 conversation between Garcia and Toro Balcarcel is relatively clear,
understandable, and logical. On its face, it concerned a legitimate topic a
potential asbestos job. Both Toro Balcarcel and Garcia worked in the asbestos
industry. They discussed an upcoming meeting, the licenses required to
complete the job, and several of the necessary positions. Both Toro Balcarcel
and Garcia speak clearly and in full sentences, and they use words that make
sense contextually. On the surface, the conversation is not "confusing and
disjointed," Urlacher, 979 F.2d at 939, it does not involve unusually short or
cryptic statements for a casual phone conversation, and it does not contain
"sharp and abbreviated" language, "unfinished sentences," or "ambiguous
references," United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988) (internal
quotations omitted). In order to allow lay opinion testimony interpreting a
facially coherent conversation such as this, the government would have to
establish a foundation that called into question the apparent coherence of the
conversation so that it no longer seemed clear, coherent, or legitimate. Without
a foundation creating doubt about what seemed to be obvious, it is unlikely that
opinion testimony would be helpful to the jury. Rather, the testimony then
would serve to direct the jury what to conclude on a matter that it should decide
in the first instance. See Rea, 958 F.2d at 1216 (rejecting lay opinion testimony
that "does not help the jury but only tells it in conclusory fashion what it should
find").
96
analysis. The trial court must consider the facial clarity of the conversation,
along with the foundational testimony, and determine whether the conversation
would benefit from opinion testimony. As is true of the admissibility of all
evidence, the trial court must act within its discretion in determining the degree
of coherence of a conversation and the helpfulness of opinion testimony.
III. Harmless Error
97
The court abused its discretion in admitting Garcia's prior drug conviction and
Toro Balcarcel's testimony interpreting the July 10 phone conversation.
Nonetheless, we will vacate Garcia's convictions only if the erroneous
admission affected his substantial rights. See Rea, 958 F.2d at 1220. "An
erroneous ruling on the admissibility of evidence is harmless if the appellate
court can conclude with fair assurance that the evidence did not substantially
influence the jury." Id. To determine whether the errors were harmless, we
must consider the remaining evidence against Garcia.
98
99
entitled to credit his testimony, it is clear that they did not believe him entirely
because they acquitted Ceron. Ceron, of course, is the individual who Toro
Balcarcel testified initiated contact with Garcia, connected Toro Balcarcel and
Garcia, and arranged the initial stages of the deal. The jury's acquittal of Ceron
makes it less clear that they would have credited Toro Balcarcel's version of
events absent the improperly admitted evidence.
100 The agents supervising the case did not observe Toro Balcarcel every minute.
Before Toro Balcarcel arrived at Garcia's house, Toro Balcarcel met with
agents Crespo, Lawlor, and Parton at a location approximately ten to fifteen
minutes away from Garcia's house. At that location, the agents drew him a
map, gave him a transmitter, and instructed him to open the trunk of his van to
signal that the deal was complete. Toro Balcarcel denied that he had any drugs
with him when he left the meeting, but he did not testify that police searched
him. Lawlor testified that Parton and he searched Toro Balcarcel and Toro
Balcarcel's van and did not find any drugs. However, in the FBI report
chronicling the events, Lawlor wrote only that Parton searched Toro Balcarcel
and the van. He did not note that he had searched either Toro Balcarcel or his
van. Further, on cross examination, Lawlor admitted that he did not observe
Parton conduct either search. Parton did not testify.
101 Toro Balcarcel was alone and unobserved for ten to fifteen minutes from the
time he left the meeting until Crespo, the agent observing Garcia's house, saw
Toro Balcarcel arrive at Garcia's house. Crespo testified that he observed Toro
Balcarcel arrive, he lost sight of Toro Balcarcel for several minutes, and then he
observed the rear hatch of the van rise and lower and Toro Balcarcel driving
away from Garcia's house. Neither Crespo nor any other agent observed Toro
Balcarcel during the time of the actual transaction. No agent heard the
transaction because the transmitter did not work properly and the agents did not
equip Toro Balcarcel with a recording device.
102 Toro Balcarcel testified that he and Garcia were in "a room ... behind the
driveway where there are tools" and that Garcia showed him the three
kilograms and then put them inside two bags and gave the bag to Toro
Balcarcel. No one observed this transfer. In addition, no one observed Toro
Balcarcel place the bag with the drugs into his van, even though Crespo saw the
trunk hatch go up and down. Thereafter, Toro Balcarcel was again alone and
unobserved for approximately three minutes after he left Garcia's house. At this
point, agents in cars followed him to the predetermined meeting location.
During this ten to fifteen minute drive, Toro Balcarcel was alone in the van
with agents following him. When Toro Balcarcel arrived at the predetermined
location, he delivered the bag with the drugs to Lawlor.
103 Finally, we must consider the recorded phone conversation without the aid of
Toro Balcarcel's testimony interpreting it. On the recording, Toro Balcarcel and
Garcia speak about an asbestos project, using terms from the asbestos business.
It is undisputed that both Toro Balcarcel and Garcia work in the asbestos
removal business. Toro Balcarcel admitted that he spoke with Garcia about
actual asbestos work in the past. The conversation has a legitimate plain
meaning.
104 Toro Balcarcel's testimony about the conversation and the meaning of its coded
words was central to the government's case and was the principal evidence
against Garcia. The government offered the interpretation to explain the terms
and setup of the drug deal. Further, the court's admission of Garcia's prior
conviction was clearly prejudicial. It portrayed Garcia as a convicted felon and
a repeat drug dealer. There was circumstantial evidence tying the drugs to
Garcia; however, the court allowed the government to inappropriately introduce
evidence of the earlier conviction and Toro Balcarcel's interpretation of the
code. We cannot separate the effects of the improperly admitted evidence. We
cannot satisfactorily tie the three kilograms to Garcia or state with any certainty
that the prejudicial and erroneously admitted evidence did not affect the jury.
The admission of Toro Balcarcel's testimony was not harmless error because
we cannot "conclude that the testimony was `unimportant in relation to
everything else the jury considered on the issue in question, as is revealed in the
record.'" Rea, 958 F.2d at 1220 (quoting Yates v. Evatt, 500 U.S. 391, 403, 111
S.Ct. 1884, 114 L.Ed.2d 432 (1991), overruled on other grounds by Estelle v.
McGuire, 502 U.S. 62, 72 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)); United
States v. Dicker, 853 F.2d 1103, 1110-11 (3d Cir.1988) (finding reversible error
in the erroneous admission of Rule 701 testimony about a conversation). The
evidence in this case was largely circumstantial and not so overwhelming to
allow us to conclude that the jury would have found Garcia guilty without
considering the prior conviction and testimony interpreting the conversation.
Therefore, we find that the errors were not harmless, and we vacate Garcia's
convictions.
CONCLUSION
105 The court erred in allowing the admission of Garcia's prior conviction as
similar act evidence under Rule 404(b) because the prior conviction did not
relate to Garcia's knowledge of the code allegedly used in the current offense or
the use of codes generally in drug transactions. In addition, the court erred in
allowing Toro Balcarcel to offer his lay opinion interpreting the July 10, 2000,
conversation without the necessary foundation under Rule 701. Because these
errors were not harmless, we vacate Garcia's convictions and remand the case
Notes:
*
The Honorable David N. Hurd of the United States District Court for the
Northern District of New York, sitting by designation
Ariel Toro Balcarcel testified that he has used many aliases. For purposes of
this opinion, we refer to him as "Toro Balcarcel."
In the taped conversation, Toro Balcarcel and Garcia spoke in Spanish. The
transcript admitted into evidence was an English translation
The actual offense occurred on October 8, 1987. Garcia pleaded guilty on April
4, 1988, and the state court sentenced Garcia on June 3, 1988, to six months
imprisonment, five years probation, and $340 restitution
The indictment also contained a charge against Garcia for being a felon in
possession of a firearm based on the police's discovery of a gun in Garcia's
house during a post-arrest search. The court granted Garcia's pretrial motion to
sever the gun possession count. After the trial on the drug charges, the court
granted the government's motion to dismiss the firearm count
In making its initial determination after considering the pretrial arguments, the
court ruled:
Under those circumstances, it seems like to me that knowledge and intent
even based on what I heard about the tape and the defendant's position that the
tape doesn't show any knowing drug deal, it would be my preliminary
indication to permit the government to prove that prior similar act, because I
think under the Huddleston analysis, since knowledge and intent is in this case,
it's being advanced for a proper purpose to show knowledge and intent, it's
relevant as to the crime the defendant is on trial for, a conspiracy involving
cocaine and possession with intent to distribute cocaine. The prior crime itself is
distribution of cocaine.
I think it's obvious at any time a similar act is admitted it carries with it some
danger of prejudice, but here, I think, it's far more probative on the issue of
knowledge and intent than prejudicial, I assume that you would want me to
admit it with a limiting instruction, which I will do.
The defendant again objected when the government offered the prior
conviction into evidence at trial, and the court confirmed its earlier ruling:
I have considered this carefully and I understand your concerns, I think
knowledge and intent is an issue, I think it's relevant to this jury's consideration
whether in that particular conversation Mr. Garcia's previous experience with
drugs, although a small amount, it's the distribution of the same drug that's at
issue in this case. I think it's relevant to the assessment of his knowledge and
intent in engaging in that conversation. It's being advanced for a proper
purpose. I think it's relevant for the crime for which the defendant is on trial. I
think under the circumstances, it's more probative than prejudicial.
7
The exact amount of cocaine involved in the instant transaction is unclear. The
indictment alleged 500 grams or more of cocaine. The government initially
maintained that Garcia agreed to sell Toro Balcarcel 11 kilograms. Toro
Balcarcel testified that he negotiated the purchase of 10 kilograms. The police
recovered 3 kilograms. Whether this transaction involved 500 grams or 11
kilograms, it is an amount many times greater than 2 grams, so much so that
the dissimilarity detracts from any probative value of the prior act evidence
The 2000 Amendments, incorporated into the 2001 version of Fed.R.Evid. 701,
add a clause to the end of the rule to clarify the distinction between lay and
expert testimonySee Fed.R.Evid. 701(c) (adding the requirement that opinion
testimony by lay witnesses be limited to opinions "not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702"). This
addition does not substantively change Rule 701. Indeed, the amendment serves
more to prohibit the inappropriate admission of expert opinion under Rule 701
than to change the substantive requirements of the admissibility of lay opinion.
"Rule 701 has been amended to eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through the simple expedient
of proffering an expert in lay witness clothing." Fed.R.Evid. 701 advisory
committee notes (2000). "By channeling testimony that is actually expert
testimony to Rule 702, the amendment also ensures that a party will not evade
the expert witness disclosure requirements set forth in Fed.R.Civ.P. 26 and
Fed.R.Crim.P. 16 by simply calling an expert witness in the guise of a
layperson." Id. Thus, our Opinion applies equally to cases subject to the new
Rule 701 as to the 2000 version, which governed the instant case.
knowledge based on his "past experience in drug dealing," his opinion was not
based on his perception of the situation as a participant in it. In order to offer
opinion testimony based on Toro Balcarcel's knowledge as a drug dealer, the
government needed to qualify Toro Balcarcel as an expert and comply with all
of the pretrial disclosure rulesSee United States v. Figueroa-Lopez, 125 F.3d
1241, 1246 (9th Cir.1997) (rejecting agent's testimony as a lay witness when
"the Government instructed the witness to answer questions `based upon your
training and experience'"). Because the government did not qualify Toro
Balcarcel as an expert, any opinion testimony based on his expertise and
knowledge as a drug dealer was improper.
10